Saleh v. American Steamship Company

Filing 57

ORDER granting 44 Motion to Compel - Signed by Magistrate Judge Mona K. Majzoub. (LBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
YOUSSOF SALEH,
Plaintiff,

CIVIL ACTION NO. 09-cv-14562

vs.
DISTRICT JUDGE PAUL D. BORMAN
AMERICAN STEAMSHIP
COMPANY,
Defendant.
_________________________/

MAGISTRATE JUDGE MONA K. MAJZOUB

OPINION AND ORDER GRANTING DEFENDANT’S MOTION TO COMPEL
DISCOVERY (DOCKET NO. 44)
This matter comes before the Court on Defendant’s Motion To Compel Discovery filed on
February 8, 2011. (Docket no. 44). Plaintiff has filed a Response on March 17, 2011. (Docket no.
52). The parties filed a Joint Statement of Resolved and Unresolved Issues on March 18, 2011.
(Docket no. 53). The motion was referred to the undersigned for decision pursuant to 28 U.S.C. §
636(b)(1)(A). (Docket no. 45). The Court dispenses with oral argument on this matter pursuant to
E.D. Mich. Local Rule 7.1(f). (Docket no. 48).
According the Joint Statement, the only remaining issue is Defendant’s request that Plaintiff
be compelled to appear for an updated deposition limited to inquiry about events post-dating
Plaintiff’s original deposition on March 25, 2010. (Docket no. 44). The parties “may obtain
discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense . . . .
For good cause, the court may order discovery of any matter relevant to the subject matter involved
in the action.” Fed. R. Civ. P. 26(b).

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Defendant argues that Plaintiff was last deposed on March 25, 2010 and since that time has
undergone extensive medical care with numerous health care providers, including a surgical
procedure. As set forth in this Court’s prior discovery orders, Plaintiff’s claims put his health
squarely at issue in this action. (Docket no. 1, 41, 54); see also Schlagenhauf v. Holder, 379 U.S.
104, 119 (1964). Therefore, Plaintiff’s medical care and conditions are relevant, including for the
time period since the prior deposition.
Plaintiff admits that he has undergone continued medical care since the March 25, 2010
deposition, but Plaintiff argues that all of these medical records are available to Defendant and any
information sought by the continuation of the deposition is “just as easily” obtained from Plaintiff’s
current medical records. (Docket no. 52).
Rule 30(a)(2)(A) provides that a party must obtain leave of court to obtain a deposition
where the deponent has already been deposed in the case. Fed. R. Civ. P. 30(a)(2)(A)(ii). The
“court must grant leave to the extent consistent with Rule 26(b)(2)” which provides for limitations
on the frequency and extent of discovery. While the Court agrees with Plaintiff’s argument that the
“mere passage of time is not sufficient justification for a second deposition,” the circumstances here
go beyond the mere passage of time. It is undisputed that Plaintiff has undergone not just
“continued medical treatment” but additional procedures including a surgery.
The Court also considers Plaintiff’s argument that this information is available through other
means, namely, the production of Plaintiff’s medical records. (Docket no. 52). In this matter,
Plaintiff was not forthcoming with Rule 26 disclosures, responses to discovery or authorizations for
updated medical records prior to Defendant filing this Motion to Compel. As set forth in the parties’
Joint Statement:

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1.

On March 10, 2011, Plaintiff served answers to Defendant’s Interrogatories of May
26, 2010;

2.

On March 10, 2011, Plaintiff served his Rule 26 Disclosures;

3.

On March 10 and 16, 2011 Plaintiff produced authorizations to permit Defendant to
obtain updated medical records from six named health care providers and
institutions;

4.

On March 17, 2011 Plaintiff served answers to Defendant’s Interrogatories and
Requests for Production of Documents dated November 16, 2010. (Docket no. 53).

It is disingenuous for Plaintiff to argue that Defendant could otherwise obtain the information
he seeks from documents Plaintiff did not timely make available. It is of no consequence that
Plaintiff made the documents and authorizations to obtain medical records available to Defendant
only after Defendant filed this motion. Furthermore, there may be information available from
Plaintiff’s testimony that cannot be gleaned from the medical records alone. The Court notes that
Plaintiff’s Response to Defendant’s Motion to Compel was untimely filed on March 17, 2011,
despite this Court’s order that the Response was due February 25, 2011. (Docket no. 48).
Presumably Plaintiff’s late Response allowed Plaintiff to produce much of the discovery sought by
Defendant’s Motion.
The Court will grant Defendant’s motion and order Plaintiff to appear for deposition on a
mutually convenient date and time occurring on or before June 24, 2011. (Docket no. 39). Rule
37(a)(5)(A) provides that if a discovery motion “is granted– or if the disclosure or requested
discovery is provided after the motion was filed– the court must, after giving an opportunity to be
heard, require the party or deponent whose conduct necessitated the motion, the party or attorney

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advising that conduct, or both to pay the movant’s reasonable expenses incurred in making the
motion, including attorney’s fees.” Fed. R. Civ. P. 37(a)(5)(A). None of the exceptions to an order
of payment apply in this instance. Fed. R. Civ. P. 37(a)(5)(A)(i)-(iii). Plaintiff in his response
provided no explanation for the tardy answers and responses necessitating Defendant’s motion to
compel. The Court will order Plaintiff to pay the reasonable costs of Defendant’s motion. Fed. R.
Civ. P. 37(a)(5)(A).
IT IS THEREFORE ORDERED that Defendant’s Motion to Compel Discovery (docket
no. 44) is GRANTED and Plaintiff will appear for a continued deposition on or before June 24,
2011, not to exceed two hours and limited to issues post-dating the March 25, 2010 deposition.
IT IS FURTHER ORDERED that Defendant will file and serve within fourteen (14) days
of entry of this Order a summary of its reasonable expenses including attorneys fees incurred in
making its Motion to Compel (docket no. 44) including all necessary supporting documentation for
determining the reasonableness of the fees and costs, including fee per hour, affidavit(s) of
attorney(s) regarding work activities performed and the time spent on each activity.
IT IS FURTHER ORDERED that Plaintiff will have ten (10) days from service of
Defendant’s summary of expenses to serve and file a response.
NOTICE TO THE PARTIES
Pursuant to Fed. R. Civ. P. 72(a), the parties have a period of fourteen days from the date of
this Order within which to file any written appeal to the District Judge as may be permissible under
28 U.S.C. § 636(b)(1).
Dated: June 7, 2011

s/ Mona K. Majzoub
MONA K. MAJZOUB
UNITED STATES MAGISTRATE JUDGE

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PROOF OF SERVICE
I hereby certify that a copy of this Opinion and Order was served upon Counsel of Record
on this date.
Dated: June 7, 2011

s/ Lisa C. Bartlett
Case Manager

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